The following contribution comes from Elizabeth Wydra of the Constitutional Accountability Center.

Few, if any, Supreme Court observers were surprised when the Court granted review in National Labor Relations Board v. Noel Canning. The D.C. Circuit’s decision not only threatens to invalidate every order issued by the Board – which handles matters regarding workers’ rights to improve their workplace conditions and wages – since January 4, 2012, but is also contradictory to settled executive branch practice and inconsistent with the Constitution’s text and history. It’s an extreme decision that deserves to be taken up by the High Court.

The facts underlying the D.C. Circuit’s decision would be almost as bewildering as the ruling itself, if they didn’t represent the obstructionism that has sadly become business as usual in the appointments process. As the Senate went into recess in January 2012, the Board – with three vacancies – faced the prospect that it would no longer be able to operate. The Supreme Court had held in the 2010 case of New Process Steel v. NLRBthat the Board could not act if three of its five positions were vacant, and the Senate had failed to act on President Obama’s three pending nominations to the Board, one of which had been pending for nearly a year. To enable the Board to continue to function, the president made three appointments pursuant to the constitutional power that presidents of both parties have used for decades to make temporary appointments while the Senate is in recess. Indeed, during oral argument in New Process Steel, Chief Justice John Roberts asked then- Principal Deputy Solicitor General Neal Katyal why this very power might not be a solution to the problem of vacancies on the Board.

With the Board’s authority to act restored thanks to the recess appointments, the battle over the NLRB shifted from the Senate floor to the courts. Conservative judges on the D.C. Circuit and the Third Circuit have recently held, in conflict with prior decisions of other federal courts, that President Obama lacked the authority to make these recess appointments. While this has been made into a partisan issue – every Republican senator signed on to a brief at the certiorari stage in Noel Canning arguing against the President’s NLRB recess appointments – it shouldn’t be. The George W. Bush administration zealously defended the presidential recess appointment power. It was used by Presidents Bill Clinton, George H.W. Bush, and Ronald Reagan before him. All told, presidents have apparently made more than five hundred recess appointments during intra-session recesses, including appointments of three cabinet secretaries, five court of appeals judges, ten district court judges, a director of Central Intelligence, a chairman of the Federal Reserve, numerous members of multi-member boards, and holders of a variety of other critical government posts.

This settled understanding of the recess appointment power is in line with the Constitution’s structure, text, and history. When the Framers drafted our enduring Constitution, they learned from the mistakes of the overly decentralized Articles of Confederation and created a strong executive branch headed by a single president. Under the Constitution, this new president would have sole responsibility for executing the nation’s laws, but he would be aided in that constitutional obligation by subordinate officers of his choosing.

The Framers gave primary responsibility for appointing these executive officers, as well as federal judges, to the president. They thought that vesting this responsibility in one individual would make for better appointments, and they also recognized that the president was the only federal officer who would always be available to make appointments, contrasting Congress, which would not always be sitting, with the president, who would be perpetually on duty. The Framers gave the Senate a role to play in appointing executive officers and judges, authorizing it to provide its “Advice and Consent,” but they did not want appointments to be impossible when the Senate was unavailable. Thus, they gave the president the “Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” In other words, the president could temporarily fill vacancies that existed when the Senate was unavailable to act, just as it was when President Obama made his intra-session recess appointments to the NLRB.

This textually consistent and common sense reading of the Recess Appointments Clause was ignored by the D.C. Circuit, which undertook some rather astounding legal acrobatics to invalidate President Obama’s NLRB recess appointments.

First, the appeals court held that because the Recess Appointments Clause refers to “the Recess of the Senate” – as opposed to a recess or recesses of the Senate – the Clause applies only to “inter-session” recesses that occur between the end of one enumerated session of Congress and the beginning of the next, but not “intra-session” recesses, which take place during the course of an enumerated session.

Second, the D.C. Circuit held that, even during an inter-session recess, only vacancies that first arose during such a recess may be filled under the Recess Appointments Clause. Finally, the appeals court held that even if a vacancy arises during a recess, and even if the recess is an inter-session one, the president still may not fill the vacancy temporarily through a recess appointment unless he acts during the same inter-session recess in which the vacancy arose.

This reading of the Recess Appointments Clause is wrong. By giving the president the power to “fill up all Vacancies that may happen during the Recess of the Senate,” the Framers ensured that the president could fill any vacancies that existed when the Senate was unable to perform its advise-and-consent function, whether because it was in a recess between sessions or during a session. This interpretation is consistent with Framing-era understandings of the term “recess.” While the D.C. Circuit rested its holding in large part on the rarity of intra-session recess appointments during the Founding period, the rarity of such appointments is readily explained by the rarity of such recesses during this period. Due to travel circumstances in the Founding era, Congress generally had long inter-session recesses, and few, if any, intra-session recesses. It was not until the modern era that Congress began taking substantial intra-session recesses. That fact provides no basis for ignoring the Constitution’s text and structure and established practice subsequent to the Framing period.

Similarly, because the Recess Appointments Clause is intended to ensure that the president can make temporary appointments while the Senate is in recess, what matters is not when the vacancy arose, but whether it existed when the Senate was in recess. The court below pointed to evidence that the literal language of the Clause could refer to vacancies that arose during the Senate’s recess, but nothing that suggests that this is the only possible meaning. To the contrary, evidence from the Founding suggests that the language could also refer to vacancies that existed during the recess, and that interpretation is most consistent with the Constitution’s structure and history, as well as long-settled practice.

The Founders would no doubt be surprised at the current state of affairs of the appointments process. After all, Alexander Hamilton wrote in Federalist No. 76 that it was “not very probable” that the president’s nominations “would often be overruled” by the Senate. They would also likely be surprised that the D.C. Circuit took the words they placed in the Constitution to foster a functional government to instead hamstring the executive. The Supreme Court should reject the court of appeals’ implausible and overly formalistic reading of the Recess Appointments Clause.

Trinity Lutheran Church of Columbia, Inc. v. ComerThe Missouri Department of Natural Resources' express policy of denying grants to any applicant owned or controlled by a church, sect or other religious entity violated the rights of Trinity Lutheran Church of Columbia, Inc., under the free exercise clause of the First Amendment by denying the church an otherwise available public benefit on account of its religious status.

Hernández v. Mesa(1) A Bivens remedy is not available when there are "special factors counselling hesitation in the absence of affirmative action by Congress," and the court recently clarified in Ziglar v. Abbasi what constitutes a special factor counselling hesitation; the court of appeals should consider how the reasoning and analysis in Ziglar bear on the question whether the parents of a victim shot by a U.S. Border Patrol agent may recover damages for his death; (2) It would be imprudent for the Supreme Court to decide Jesus Hernandez’s Fourth Amendment claim when, in light of the intervening guidance provided in Abbasi, doing so may be unnecessary to resolve this particular case; and (3) with respect to Hernandez’s Fifth Amendment claim, because it is undisputed that the victim's nationality and the extent of his ties to the United States were unknown to the agent at the time of the shooting, the en banc court of appeals erred in granting qualified immunity based on those facts.

Conference of September 25, 2017

Collins v. Virginia Whether the Fourth Amendment's automobile exception permits a police officer, uninvited and without a warrant, to enter private property, approach a house and search a vehicle parked a few feet from the house.

Butka v. Sessions Whether the U.S. Court of Appeals for the 11th Circuit erred in this case by holding that it had no jurisdiction to review the denial of a motion to reopen by the Board of Immigration Appeals, where the review sought was limited to assessing the legal framework upon which the sua sponte request was made.

National Institute of Family and Life Advocates v. Becerra Whether the free speech clause or the free exercise clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising.